Content Neutrality and Signs: The Reed v. Gilbert Decision and the Aftermath

On June 18, 2015, the Supreme Court of the United States (SCOTUS) unanimously agreed that a Gilbert, Arizona sign code violated the First Amendment freedom of speech rights of Rev. Clyde Reed and his Good News Community Church.

By Wade Swormstedt, Executive Director, Foundation for the Advancement of the Sign Industry

The decision potentially made all US sign codes unconstitutional because of the concept of "content neutrality," which concerns the regulation of signs based on what they say. Reed v. Town of Gilbert is undoubtedly the most important sign-related court case of the past 35 years.

The Background
Rev. Reed's church held its Sunday services at different facilities, so it needed temporary signs each week to announce the location and time of its service. The signs would be posted on Saturday and removed on Sunday. In 2005, the Town of Gilbert cited him for exceeding the time limits. Reed filed suit based on freedom of speech issues.

Between 2005 and the SCOTUS decision, of course, several of Reed's appeals were turned down. A group called Alliance Defending Freedom took up Reed's cause.

SCOTUS Justice Clarence Thomas noted the town exempted 23 categories of signs from needing permits. Three of these categories were Ideological Signs, Political Signs and Temporary Directional Signs Relating to a Qualifying Event (which characterizes Reed's signs). Ideological signs could be a maximum of 20 square feet, with no time limits. Political signs could be 16 square feet (on residential property) or 32 square feet (otherwise) with a time limit of 60 days prior and 15 days after an election. The temporary directional signs were limited to 6 square feet with a 13-hour time limit (12 hours before and 1 hour after the event).

Verbatim excerpts from the Thomas opinion are as follows:
"On its face, the sign code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the code to determine whether it is subject to strict scrutiny." (The 1980 Central Hudson SCOTUS case established the "strict scrutiny" requirement that states governmental restrictions are permissible if the governmental interest is "substantial," if the restriction "directly advances" the governmental interest, and if the restriction is no more extensive than necessary.)

Thomas continued, "The restrictions in the sign code that apply to any given sign thus depend entirely (emphasis added) on the communicative content of the sign."

What This Means for Sign Codes
In other words, SCOTUS clearly showed that signs can't be regulated differently, based on their content. Quite often, the definitions in a sign code are more important than the regulations themselves. Typically, these definitions are fraught with discrimination. A red flag should arise when any sign code has dissimilar regulations for such things as political signs, real estate signs, religious organization signs, etc. The only way to distinguish these signs is the content; thus, dissimilar regulations favor one type of speech over another.

In contrast, a sign code that stipulates different regulations for banners, projecting signs, freestanding signs, etc. is content neutral, because the message on the sign isn't a factor. As SCOTUS Justice Samuel Alito cautioned, in a concurring opinion, "This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations."

Additionally, most sign codes violate the content-neutral concept much more for temporary signs than for permanent signs. Temporary signs are already difficult to regulate, and the more restrictive the regulations for permanent signage, the more likely that people will resort to using more temporary signs. This exacerbates the temporary sign conundrum.

Planners' Reactions
Expectedly, the Reed decision immediately caught the attention of city planners - the people who write local sign codes. Planners deal with myriad civic issues, so signs are typically a very minor - yet often perplexing - concern. The American Planning Association (APA), which has more than 35,000 members, held its annual National Planning Conference in April 2016. The APA conference usually offers more than 150 sessions, and only one to three are related to signs. However, the conference's "Regulating Signs after Reed v. Town of Gilbert" attracted more than 500 people and was in the top four out of the 170 sessions, reported Professor Weinstein, one of the session's four speakers.

Wendy Moeller also spoke in the session and formerly served as president of the Ohio chapter of the APA. Last year, Moeller conducted a survey of cities nationwide and produced a report called "Best Practices in Regulating Temporary Signs." (Her full report, as well as an executive summary of it, can be found at www.thesignagefoundation.org.) In the aftermath of Reed, Moeller revised the study and co-authored, with Professor Weinstein, "Practice: Temporary Signs," in the February 2016 issue of Zoning Practice.

Writing sign codes presents numerous obstacles for city planners because the vast majority never received any collegiate instruction related to signage. Thus, planners typically seek existing sign codes, at least as a starting point, to write their own codes. As a subset of overall sign codes, the regulation of temporary signs is even more challenging, and Moeller's research provides some guidance.

Court Reactions
In May 2016, an article entitled "Free Speech Doctrine After Reed v. Town of Gilbert" in the online edition of the Harvard Law Review (HLR) wrote, "In Thomas v. Schroer, the District Court for the Western District of Tennessee found that a sign code distinguishing between off-premises and on-premises signs was content-based." HLR continues by saying the federal government is worried enough about Reed that it filed an amicus curiae ("friend of the court") brief with regard to the Federal Highway Administration's Highway Beautification Act (HBA), which has governed billboards within 660 feet of the federal highway since 1965 in various iterations. Such briefs offer related perspective to a case in which the provider isn't directly involved. HLR said a challenge to the HBA is "inevitable."

In Springfield, Illinois, a prohibition of pan-handling signs had been upheld. After Reed, the decision was overturned by the same court. HLR wrote, "Rather than limiting the amount of protected speech subject to government regulation, Reed requires legislatures to regulate all speech in order to regulate any speech." In other words, cities may subsequently be more restrictive of all signs in order to not be too restrictive on a few.

Soon after the decision, an August 15, 2015 New York Times article stated, "The court struck down a South Carolina law that barred robocalls on political and commercial topics but not on others. Last week, a federal judge in New Hampshire relied on Reed to strike down a law that made it illegal to take a picture of a completed election ballot and show it to others."

End Users' Reactions
In the shadow of Gilbert, the city of Chandler was sued in August 2016 by the Goldwater Institute, which is currently representing five businesses, including three shopping centers. Although the suit stemmed from a dispute about setback and property lines, it blossomed into a broad-based, legal challenge holding that Chandler's sign code is "impermissibly vague" and alleging that it "imposes an unconstitutional prior restraint and is unequally and arbitrarily applied." It specifically references Reed v. Gilbert and says Chandler's sign code imposes different rules based on signs' "communicative content."

The Goldwater Institute website explains: "The City of Chandler - right next door to Gilbert - imposes different rules for signs based on what they say, and who is saying it, in direct contradiction to the Supreme Court's Town of Gilbert ruling. Chandler's sign code forbids some signs, requires permits for others, and allows still others without any permit - all depending on what signs say. The code divides signs up into 11 different categories based on the messages they convey, and imposes different size and location requirements to the different categories. Thus, no permit is required for "political signs," "grand opening signs," or "residential real estate signs," but a permit is required for "development signs," "subdivision direction signs," and "non-residential real estate signs."

Meanwhile, in nearby Tucson, the 1985 sign code will probably be significantly revamped early in 2017. Changes in definitions based on content neutrality are likely to occur, but the triumvirate of Dark Skies, the Sierra Club and Scenic Arizona are resisting any changes. In the interim, a sign company trying to retrofit a legal, nonconforming, fluorescent sign with an electronic message center (EMC) is being denied. EMCs are allowed in the sign code.

Less than a month after the Reed decision, three counties in the metro Atlanta area - Cherokee, Forsyth and Hall - adopted moratoriums so they could re-examine their sign codes. Similarly, in Garfield Heights, Ohio, the Supreme Court reversed a pre-Reed decision that had sided with the city concerning the removal of a lawn sign that criticized a local councilwoman. In Norfolk, Virginia, Central Radio Co. revised its suit against the city, which had demanded that Central Radio remove a sign that criticized the city for enacting eminent domain and taking its property.

The General Aftermath
Robert Niles, writing for Bloomberg BNA's The United States Law Week (April 18, 2016 edition), said that although Reed could conceivably be interpreted to mean that strict scrutiny (which stems from Central Hudson) would apply to all speech, lower courts were still making a distinction between commercial and non-commercial speech, and applying intermediate scrutiny to commercial speech.

He writes: "Nowhere in Reed does the court suggest that it intended to upset commercial speech doctrine: Reed doesn't discuss Central Hudson or other of the court's commercial speech cases.

"Though Reed will certainly have substantial impact on free speech doctrine in challenges to regulations of non-commercial speech, the first wave of lower-court decisions suggests that reports of the death of government regulatory power in the face of First Amendment challenge after Reed were greatly exaggerated."

In other words, cities, although reticent at first, will continue to write sign codes with whatever level of restriction they prefer, but they will have to be more careful. Instead of defining signs by content, they will probably define them by physical characteristics. This doesn't infringe free speech in any way.

Again, the general fear for the sign industry is that cities, worried about being inconsistent, will simply place restrictions on ALL signs.

Summing It Up
The Goldwater Institute has produced an article called "Heed Reed," with a subtitle of "Guideposts for Amending City Sign Codes." The 2,600-word document can be obtained from the institute. Here are its summary suggestions for establishing sign codes post-Reed:

"In light of Reed and changes in state law, local sign codes around the state must be revised. Doing so need not be difficult, so long as the guidelines set out in this report are followed. Following these guidelines will not only protect free speech, but will also lead to simpler sign codes that are easier to follow and enforce, and protect taxpayers from costly and time-consuming lawsuits.

If a sign code requires enforcement officers to read a sign to determine whether it violates the code, the code is probably content based and violates the First Amendment.
Commercial messages cannot be treated differently than other types of messages.
Signs must be allowed in public rights-of-way.
Sign walkers cannot be restricted from holding up signs on public sidewalks.
Sign codes must be easy to understand, and have (a) clear standards that do not allow enforcement officials to pick when to enforce the restriction, (b) a definite time limit within which a permit will be granted or denied, and (c) an opportunity for meaningful judicial review in the event the permit application is denied. Cities should avoid permit requirements whenever possible.
If a municipality determines that removing or allowing a particular sign is integral to traffic safety, it must provide clear evidence that justifies its determination."

(A more complete report on the entire sequence of events, in addition to some commentary from Cleveland State University law professor Alan Weinstein, was published in the August 2015 issue of Signs of the Times magazine.)

Wade Swormstedt is the Executive Director of the Foundation for the Advancement of the Sign Industry (FASI), which he founded in February 2016 (www.fasi.org). He spent 31 years with Signs of the Times magazine, and the final 15 years as publisher/editor. Wade just completed a six-year term as a board member of The Signage Foundation, and he currently serves as an advisor to the Academic Advisory Council for Signage Research and Education (AACSRE). He currently assists the American Sign Museum with marketing communications. Wade has spoken about the merits of the sign industry on four continents. Wade may be contacted at wade@fasi.org or 513.701.2197.

This article appeared in the SGIA Journal, January / February 2017 Issue and is reprinted with permission. Copyright 2017 Specialty Graphic Imaging Association (www.sgia.org). All Rights Reserved.